Opinion
B327324
08-09-2024
THE PEOPLE, Plaintiff and Respondent, v. WALTER LEE COLE, Defendant and Appellant.
Michael Allen, under appointment by the Court of Appeal, and Walter Lee Cole, in pro. per., for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. A903092 Amy N. Carter, Judge. Affirmed.
Michael Allen, under appointment by the Court of Appeal, and Walter Lee Cole, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ZUKIN, J.
INTRODUCTION
In 1983, defendant Walter Lee Cole (Cole) was convicted of second degree murder. In 2021, Cole filed a petition for resentencing of his conviction pursuant to Penal Code section 1170.95 (1172.6). The trial court denied Cole's petition at the prima facie stage, finding Cole ineligible for relief under section 1172.6 as a matter of law. On appeal, appellate counsel filed a brief that summarized the procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Cole submitted his own supplemental brief. After reviewing the contentions raised in Cole's brief, we affirm the order denying his petition for resentencing.
All further unspecified statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). For ease of reference, we will refer to the section by its new numbering only.
PROCEDURAL BACKGROUND
In 1983, after a jury trial, Cole was found guilty of murder in the second degree (§ 187) with a finding of firearm use in the commission of a felony (§ 12022.5). The trial court sentenced Cole to a prison term of 17 years to life with the possibility of parole. On direct appeal, this court affirmed Cole's conviction in an unpublished opinion, People v. Cole (Feb. 6, 1985, B001886).
On September 17, 2021, Cole filed a petition for resentencing pursuant to section 1172.6. In his petition, Cole declared that he had been convicted of murder pursuant to the felony murder rule or the natural and probable consequences doctrine and that he could not now be convicted of murder because of the changes made to sections 188 and 189. The court denied Cole's petition after a hearing, stating "This case involved neither felony murder nor natural and probable consequences." The court went on to note that Cole admitted at trial to shooting the victim, but claimed he did so in self-defense. When the court began reciting testimony from Cole's preliminary hearing, Cole's counsel objected, arguing it was improper for the court to rely on the preliminary hearing transcript at the prima facie phase of Cole's petition. In response, the court stated it would not consider the preliminary hearing transcript in ruling on Cole's petition. Without relying on the preliminary hearing, the court concluded that "Cole has failed to make a prima facie case and no order to show cause should issue." After the court issued its ruling, Cole's counsel objected "to any reference to the appellate decision to determine the facts of the case if that's what was used in your finding." The trial court terminated the hearing without responding to this objection or stating whether it had relied on the appellate opinion to make factual findings in denying Cole's petition.
Cole timely filed a notice of appeal.
DISCUSSION
Under Delgadillo, we must evaluate the arguments raised in Cole's supplemental brief. (Delgadillo, supra, 14 Cal.5th at p. 232 ["If the defendant subsequently files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion"].) We have endeavored to respond to the arguments Cole has raised. However, this task is rendered difficult by the nature of Cole's briefing, which includes nearly 200 pages of assorted documents interspersed with handwritten notes.
These documents include what appear to be correspondence Cole previously sent to his appellate counsel, a copy of a prior petition for a writ of habeas corpus filed by Cole, and copies of documents already in the record on appeal, including what appears to be all of the reporter's transcripts relating to Cole's section 1172.6 petition.
I. Legal Standards
Senate Bill No. 1437 (SB 1437) was enacted by the Legislature to ensure a person's sentence is commensurate with the person's individual criminal culpability. To accomplish this goal, SB 1437 added sections 188, subdivision (a)(3), and section 189, subdivision (e), which collectively limit accomplice liability under the felony-murder rule, eliminate the natural and probable consequences doctrine as it relates to murder, and eliminate convictions for murder based on a theory which allows malice to be imputed to a person based solely on that person's participation in a crime. (See generally People v. Reyes (2023) 14 Cal.5th 981; People v. Lewis (2021) 11 Cal.5th 952, 957, 959 (Lewis); People v. Gentile (2020) 10 Cal.5th 830, 842843 (Gentile).) Senate Bill No. 775 (SB 775) extended these changes to apply to convictions for attempted murder and voluntary manslaughter.
SB 1437 also created a procedure, codified at section 1172.6, which allows persons convicted of murder, attempted murder, or voluntary manslaughter to file a petition for resentencing if they could no longer be convicted of those crimes under the law as amended by SB 1437 and SB 775. (Lewis, supra, 11 Cal.5th at p. 959; Gentile, supra, 10 Cal.5th at p. 847.) "After the parties have had an opportunity to submit briefing[ ], the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause." (§ 1172.6, subd. (c).) The bar for this prima facie showing was "'intentionally and correctly set very low.'" (Lewis, supra, 11 Cal.5th at p. 972.) In conducting its prima facie review, the trial court may not engage in factfinding involving the weighing of evidence or credibility determinations and must assume the truth of all facts stated in the petition. (Id. at pp. 971-972; People v. Flint (2022) 75 Cal.App.5th 607, 612.)
We review de novo whether the trial court properly denied Cole's petition without issuing an order to show cause. (People v. Harrison (2021) 73 Cal.App.5th 429, 437.)
II. Cole is Ineligible for Relief
"A petitioner is ineligible for resentencing as a matter of law if the record of conviction conclusively establishes, with no factfinding, weighing of evidence, or credibility determinations, that (1) the petitioner was the actual killer, or (2) the petitioner was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, (3) the petitioner was a major participant in the underlying felony and acted with reckless indifference to human life, or (4) the petitioner acted with malice aforethought that was not imputed based solely on participation in a crime." (People v. Lopez (2022) 78 Cal.App.5th 1, 14 (Lopez).)
The jury instructions and verdict establish that Cole is ineligible for relief because he was found to have acted with malice that was not imputed to him based solely on his participation in a crime. The jury found Cole guilty of second degree murder and found true the allegation that he used a firearm. At his trial, the jury was instructed with CALJIC No. 8.10, which stated that Cole could not be found guilty of murder absent proof that he killed the victim "with malice aforethought." The jury was also instructed with CALJIC No. 8.11, defining malice aforethought to include both express and implied malice and providing a definition for each. The jury was instructed on second degree murder with CALJIC No. 8.30 and CALJIC No. 8.31, which incorporated the definitions of express and implied malice, respectively, from CALJIC No. 8.11.
As given at Cole's trial, CALJIC No. 8.11 provided, in pertinent part, "Malice is express when there is manifested an intention unlawfully to kill a human being. [¶] Malice is implied when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base, anti-social purpose and with a wanton disregard for human life." (Original brackets omitted.)
The jury was given CALJIC No. 8.30 which provided "Murder of the second degree is the unlawful killing of a human being with malice aforethought when there is manifested an intention unlawfully to kill a human being but the evidence is insufficient to establish deliberation and premeditation."
The jury was also given CALJIC No. 8.31 which provided "Murder of the second degree is [also] the unlawful killing of a human being as the direct casual result of an intentional act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with wanton disregard for human life. [¶] When the killing is the direct result of such an intentional act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being."
Cole argues that previous California law permitted a conviction for second degree murder without a finding that the defendant acted with malice. However, Cole has not shown that he was actually or potentially convicted under such a theory. Critically, the jury was not instructed on the felony murder rule, the natural and probable consequences doctrine, aider and abettor liability, accomplice liability, conspiracy, or any theory that permitted the jury to impute malice to him based on his participation in a crime. The jury instructions establish that Cole could not have been found guilty of second degree murder unless the jury determined that he acted with actual or implied malice. Cole has not identified any alternative theory that was presented to the jury which would have resulted in a conviction for second degree murder based on a theory of imputed malice. (People v. Gonzalez (2021) 12 Cal.5th 367, 409-410 [it is the appellant's burden to affirmatively demonstrate error].)
Cole argues that instructions CALJIC Nos. 8.10, 8.11, and 8.20 permitted the jury to impute malice to him because they mention "malice aforethought," "implied malice," and "express malice." Express and implied malice are not forms of imputed malice. (See e.g. People v. Carr (2023) 90 Cal.App.5th 136, 139 ["Implied malice is not imputed malice"].) As discussed above, CALJIC Nos. 8.10 and 8.11 are of no help to Cole. CALJIC No. 8.20 defined first degree murder for the jury. This instruction on first degree murder did not permit the jury to impute malice to Cole in finding him guilty of second degree murder.
Cole also argues that CALJIC No. 17.19 was given to the jury and does not make any reference to malice. CALJIC No. 17.19 concerned the sentencing enhancement under section 12022.5 that Cole personally used a firearm in commission of a felony. Cole is correct that this instruction contains no reference to malice, but this fact is immaterial in light of the other instructions given to the jury.
Cole also appears to argue that under People v. Langi (2022) 73 Cal.App.5th 972 (Langi), he is entitled to resentencing relief even though the jury was not instructed on the natural and probable consequences doctrine or the felony murder rule. Cole's reliance on Langi is misplaced. In Langi, the defendant was one of four men who beat the victim. The victim ultimately died from head trauma when one of the punches thrown during the assault caused him to fall and hit his head. (Id. at pp. 976-977.) The jury was not instructed on the natural and probable consequences doctrine but was instructed on aiding and abetting liability. (Id. at p. 981.) The jury found the defendant guilty of robbery, battery, and second degree murder. (Id. at p. 977.) The defendant later petitioned for resentencing under section 1172.6, which the trial court summarily denied.
The Court of Appeal reversed, finding the defendant was entitled to an evidentiary hearing because the instructions permitted him to be found guilty of aiding and abetting second degree murder without finding he personally acted with malice. The Langi court reasoned the instructions on second degree murder and on aiding and abetting liability, when read together, created an ambiguity that could have allowed the jury to find the defendant guilty as an aider and abettor of second degree murder even if he only intended to assist in a battery or robbery and did not intend to aid or abet a killing. (Langi, supra, 73 Cal.App.5th at p. 983.)
Here, by contrast, Cole's jury was not instructed on aiding and abetting liability, eliminating the ambiguity on which the Langi decision was based. Cole has not identified any similar ambiguity in the instructions given at his trial. Rather, in finding Cole guilty of second degree murder pursuant to CALJIC Nos. 8.30 or 8.31, the jury necessarily found he acted with malice aforethought, rendering him categorically ineligible for relief under section 1172.6. (Lopez, supra, 78 Cal.App.5th at p. 14; People v. Harden (2022) 81 Cal.App.5th 45, 52 ["if the record shows that the jury was not instructed on either the natural and probable consequences or felony-murder doctrines, then the petitioner is ineligible for relief as a matter of law"].) Accordingly, we affirm the court's denial of Cole's petition.
III. Cole's Remaining Claims of Error
In his brief, Cole raises a litany of other alleged errors, none of which suggest that he is eligible for relief under section 1172.6. Cole argues the trial court improperly considered the preliminary hearing transcript and prior appellate opinion in denying his petition. Even if we were to assume such error, Cole cannot establish any prejudice flowing from this error because the record of conviction conclusively establishes that he is ineligible for relief. Therefore, "there is no reasonable probability [Cole] would have obtained a more favorable result" absent these alleged errors; consequently, the claimed errors were "harmless" and do not warrant reversal. (People v. Mancilla (2021) 67 Cal.App.5th 854, 864.) Cole also argues he was denied effective assistance of counsel because his attorney did not file a motion to strike the District Attorney's filing, which contained a copy of his prior appellate opinion. This argument fails for the same reason.
In resolving these issues by reference to the harmless error standard, we do not imply the trial court did, in fact, commit any error below. The record establishes that the trial court did not rely on the preliminary hearing transcript in denying Cole's petition. Similarly, the record is unclear as to whether the trial court relied on the prior appellate opinion affirming Cole's conviction to find him ineligible for relief. However, "in cases like this one, the harmless error doctrine provides a reasonable method to avoid protracted hearings in past cases that are final and should stay that way." (People v. Hurtado (2023) 89 Cal.App.5th 887, 893.)
Cole claims his counsel should have raised an argument regarding the loss or destruction of the reporter's transcripts from his trial. Alternatively, Cole argues the loss of these transcripts entitles him to a vacatur of his conviction under section 1181, subdivision (9). Section 1181, subdivision (9) allows the trial court to set aside or vacate a judgment and order a new trial "because of the loss or destruction" of trial transcripts. "This statute does not mandate a new trial in every case where reporters' notes are unavailable; rather, it merely authorizes the reviewing court to order a new trial if justice requires." (People v. Moore (1988) 201 Cal.App.3d 51, 56.) "The loss, destruction, or absence of a portion of reporter's notes does not per se require a new trial. [Citation.] The burden is on the appellant to show that the omissions are 'substantial' and 'consequential' [citations], and that the omissions prevent meaningful appellate review. [Citation.]" (People v. Bills (1995) 38 Cal.App.4th 953, 959.) Cole has made no showing that the loss of the transcripts from his trial was in any way relevant to his ability to make a prima facie case for resentencing under section 1172.6. (See, e.g., People v. DeHuff (2021) 63 Cal.App.5th 428, 438 [section 1172.6 "does not permit a petitioner to establish eligibility on the basis of alleged trial error"]. In the absence of such a showing, the loss of these trial transcripts has no bearing on Cole's appeal or underlying conviction.
Cole claims his appellate counsel should have argued that he was eligible for relief under Lopez. However, Cole does not make any showing that Lopez is relevant to his appeal or mandates reversal of the trial court's order. As discussed above, Lopez establishes Cole is ineligible for relief, and thus, his counsel did not err by failing to raise this case on his behalf.
Cole similarly alleges his counsel provided ineffective assistance by not following the procedures set forth in Anders v. California (1967) 386 U.S. 738 (Anders) in filing an opening brief identifying no issues on appeal. This argument has been expressly rejected by the California Supreme Court. "[T]he procedures set out in Anders . . . do not apply to an appeal from the denial of postconviction relief." (Delgadillo, supra, 14 Cal.5th at p. 226.) Instead, the Delgadillo court outlined its own procedure: "When appointed counsel finds no arguable issues to be pursued on appeal . . . counsel should file a brief informing the court of that determination, including a concise recitation of the facts bearing on the denial of the petition." (Id. at p. 231.) This is precisely what Cole's appellate counsel did.
Cole claims his counsel provided ineffective assistance by failing to find an arguable issue to raise on appeal. This claim lacks merit as Cole has failed to identify any non-frivolous argument that counsel should have raised on appeal.
Cole also contends the trial court improperly made a credibility determination at the prima facie stage of his petition. Cole does not identify the alleged credibility determination the trial court made in denying his petition. Presumably, Cole is referring to the trial court's determination that the case did not involve the felony murder rule or natural and probable consequences doctrine. As our California Supreme Court has recognized, "'[I]f the record . . . "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner."'" (Lewis, supra, 11 at p. 971.) Here, the jury instructions establish that Cole was not convicted under the felony murder rule or natural and probable consequences doctrine, and the trial court was permitted to make this determination even though Cole's petition for relief contained a declaration alleging that he was convicted under such a theory.
Cole argues that under Hicks v. Oklahoma (1980) 447 U.S. 343, the government violated his due process rights by failing to enforce its own "statutes, amendments, appellate court initiatives, etc." However, Cole does not identify any statute, amendment, or initiative that was not followed or enforced in connection with his petition for resentencing relief.
The record supports the trial court's decision to deny Cole's petition. The abstract of judgment and jury instructions conclusively establish that he is ineligible for relief as a matter of law. Cole's arguments do not refute this conclusion or otherwise suggest that he is entitled to relief under section 1172.6.
DISPOSITION
The order denying Cole's section 1172.6 petition is affirmed.
WE CONCUR: CURREY, P. J. COLLINS, J.